Western Union Telegraph Company v. Furlow

• Decision Date: 07 May 1917
• Docket Number: 366
• Citation: 195 S.W. 368,129 Ark. 116
• Parties: WESTERN UNION TELEGRAPH COMPANY v. FURLOW
• Court: Arkansas Supreme Court

195 S.W. 368

129 Ark. 116

WESTERN UNION TELEGRAPH COMPANY v. FURLOW

No. 366

Supreme Court of Arkansas

May 7, 1917

Appeal from Lafayette Circuit Court; George R. Haynie, Judge modified and affirmed.

Judgment affirmed.

Albert T. Benedict, Francis Raymond Stark and Charles Todd nonresidents, and Rose, Hemingway, Cantrell, Loughborough & Miles, for appellant.

1. The court should have directed a verdict for defendant. 121 Ark 249; 102 Id. 607; 77 Id. 534; 71 Id. 604; 97 Id. 226; 108 Id. 92; 110 Id. 605.

2. The court erred in its instructions.

3. The verdict is excessive. 85 Ark. 267; 113 Id. 9.

Searcy & Parks, for appellee.

1. This case is governed by the law as settled on the former appeal. There are no new issues or additions, nor different testimony. 121 Ark. 246. There is no error in the instructions; the verdict is sustained by the evidence and is not excessive. Two juries have passed on the case and it should be affirmed.

OPINION

HUMPHREYS, J.

This is the second appeal in this case. On the former appeal, the judgment was reversed because the trial court erred in two particulars, as follows:

First. In excluding evidence that the stenographer employed by the Stout Lumber Company had agreed to deliver the telegram to Lee Young, father of appellee, to whom the telegram was sent, and who was in the employ of the Stout Lumber Company.

Second. In permitting counsel, in his closing argument, to bear witness to the good character of Mr. Young.

The law of the case as to the duty of the telegraph company to deliver messages was laid down as follows: "The majority are also of the opinion that no error was committed in refusing appellant's seventh instruction. That this is true because the undisputed evidence is that the message was received before 6 P. M., and having been so received before the closing hour, that it was the duty of appellant's agent to make a reasonable effort thereafter to deliver the message. The view of the majority is that, while the telegraph company was under no duty to receive the message at Thornton after 6 P. M., yet, having received the message, before that hour, its duty in the premises required appellant to exercise ordinary care to deliver the message, although the delivery could not have been made until after 6 P. M."

It is now insisted that this declaration of law was announced in the case because a majority of the court "overlooked the fact that the sender of the message, Mr. Hendrix, was the uncle of the plaintiff and the manager for the defendant at Lewisville." In referring to the facts recited by the court, 121 Ark. at page 245, it is apparent that the court did not overlook these facts. It was there said: "The proof is to the effect that she was visiting her uncle, who was appellant's manager at Lewisville, Arkansas."

The facts in the case on the former appeal are adopted by the court as the facts made by the record in the case now before us, with the following modifications: H. D. Hendrix testified in the present case that he told appellee that the office at Thornton would close at 6 P. M., and that it was then 5:30. Her response was to go ahead and send the message. This testimony was not given in the former trial.

E. O. McRae testified in the case now before us that Miss Troutman, the stenographer in the Stout Lumber Company's office, said that she would take the message and deliver it to Lee Young; also that he was mistaken when he testified on the first trial that he knew where Lee Young lived.

The statement made by Hon. Tilman B. Parks to the effect that "he and Mr. Young had been raised boys together and had loved each other like brothers ever since, and Mr. Young's veracity was beyond question," is omitted from the record now before us. With these modifications, the statement of facts recited in the record on the original appeal is in all material parts the same as the statement of facts now before us.

The rule of law announced on the former appeal in the case being the law of this case under the facts disclosed by the record, it is useless to enter upon a discussion as to whether the rule announced in this case on the former appeal conflicts with the law as declared in other cases decided by this court. In handing down the opinion on the former appeal, it was said by the writer that the majority opinion was in conflict with the law laid down in Western Union Tel. Co. v. Turley, 108 Ark. 92, 156 S.W. 836, and not in accord with Western Union Tel. Co. v. Alford, 110 Ark. 379, 161 S.W. 1027. The majority took the view that the law as declared herein did not conflict with the law laid down in those cases. The law as declared by the majority is binding on the court as far as this case is concerned.

It is contended by appellant that the court committed reversible error in...